When U.S. Supreme Court Justice Samuel Alito spoke to Columbia Law School’s chapter of the Federalist Society, the students presented him with a t-shirt adorned with four letters; “WWSD,” it read.
What Would Scalia Do?
Alito opened the national convention of the Federalist Society, a conservative/libertarian legal forum, Thursday morning, offering an elegy of Scalia’s legacy.
In the intervening months since Justice Antonin Scalia’s death, Alito said a “palpable emptiness” grips conference and oral arguments. In 30 years on the Court, Alito noted Scalia wrote 870 opinions, fundamentally changed the thrust of oral arguments, purged most references to legislative history, facilitated a textualist revolution on the bench, and led rousing choruses of “happy birthday” with his “velvety tenor.”
The course of oral argument has shifted a great deal as compared to one generation ago, in large part due to Scalia’s tenure. He peppered advocates with questions from his first days on the Supreme Court, in contrast to his more somber colleagues who tended to defer to advocates. Alito said an early tally showed Scalia asked 126 questions in his early months on the Court. “It became a contact sport,” Alito said of Scalia’s parries at oral argument. “The court was not a safe space.”
The barb was one of several Alito loosed on the PC regime governing college campuses — he made qualified use of the term “melting pot” to describe Scalia’s New York upbringing, reminding that audience that the University of California has advised that the term is a microaggression. He further wondered how college students might react to a peer wearing apparel declaring America “a great and good country,” in a possible reference to President-elect Donald Trump’s signature “Make America Great Again” trucker hats.
Alito identified Scalia’s opinion in D.C. v. Heller, a landmark Second Amendment case, as his most important ruling for the Court. He also praised Scalia’s hostility to judicial balancing tests and legislative history. Scalia argued balancing tests tend to produce the result favored by the judge, and that legislative history was not an authoritative source as concerning Congress’ intent.
“Experienced advocates knew not to bring it up,” Alito said of legislative history, as Scalia was bound to react with incredulity. (RELATED: Here Are The Early Favorites For Trump’s Supreme Court Nominee)
He also praised Scalia’s faith in democratic process and commitment to a restrained judiciary in a successful constitutional system.
“Nino believed in democracy and in the judgement of ordinary people,” Alito said. He identified Scalia’s disciplined and rigorous application of textualism, a theory which holds that a word’s ordinary meaning should govern its interpretation, as a natural extension of his confidence in a constitutional democracy.
His commitment to a consistent interpretative theory led Alito to identify him as the “most theoretical justice” ever to sit on the Court. As a result, Scalia was, as Alito noted “uncompromising.” “He was uncompromising, even at the cost of losing votes,” he said, revealing Scalia privately described one of his first opinions as a justice as “Meaningless, inconsistent with the rule of law, and insane.”
“Nino was always a professor at heart,” Alito added. “He was always an academic.” Scalia taught law at the University of Virginia Law School and the University of Chicago Law School before his appointment to the Supreme Court.”
Though a product of Jesuit education and a devout Catholic, Alito said Scalia was so principled he was undeterred from picking a “fight” with St. Thomas Aquinas, one of the greatest philosophers and theologians of the Catholic world. In the second volume of Aquinas’ opus the Summa Theologiae, the “angelic doctor” writes a judge, in the name of equity, may set aside a bad law to uphold a natural right.
“It sounded just like Bill Brennan!” Alito said, in reference to one of the most liberal justices ever to serve on the Supreme Court.
No doubt, Alito asserted, Scalia and Aquinas — “two giant Italians” — are hashing the question out over red wine.
“Here below,” Alito said, “we are left to ask ourselves, ‘WWSD?’ What would Scalia do?”
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